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The New Republic

The Five Worst Things About Texas's Abortion Law—and Three Ways to Fight It

All eyes were on Texas last month when hundreds of orange-clad women flooded Austin to protest an omnibus abortion bill, and state Senator Wendy Davis stayed on her feet for thirteen hours to filibuster it out of existence. But abortion rights advocates had barely begun to celebrate when Republican Governor Rick Perry called another session for the express purpose of jamming the legislation through, and on Friday night, that’s exactly what happened: As an estimated 7,500 protestors waited in the galleries and on the lawn of the capitol, Texas’s deep-red Senate passed House Bill 2.

Most of the bill, which Perry signed into law Thursday, is set to go into effect in October, and women and their advocates are bracing for the blow—and trying to figure out what they can do about it. (If you're curious, see full text here.) Here are the five worst things the law will do:

1. Close most clinics

The law is expected to shutter all but five or six of the state’s 42 abortion clinics by putting insurmountable obstacles between providers and the licenses they need to operate. First and foremost, it imposes Ambulatory Surgical Center regulations on clinics. ASC regulations are building codes for facilities that house complex surgeries; outpatient centers like abortion clinics—or, for another example, dentist’s offices—that perform minor, low-risk procedures don’t normally have to follow them. But in recent years, anti-abortion groups like Americans United for Life have pushed state legislatures to apply ASC codes to abortion clinics, shutting down countless providers who can’t afford to widen hallways, re-route HVAC systems, add parking spaces, and make countless other physical plant changes that have no bearing on the safety of abortion.

“If your building wasn’t originally built to meet those requirements, there’s probably no way that the clinics not already licensed as Ambulatory Surgical Centers could convert,” says Janet Crepps, senior counsel for the national Center for Reproductive Rights. To make matters worse, because ASCs are more expensive to build and run, they charge more, too: $1,277 for an abortion on average, compared to $540 at an outpatient clinic, according to The Texas Tribune. Luckily, while the rest of the provisions in the law are set to land this fall, the ASC requirement is on hold until Texas’s Department of Health finalizes the set of rules; DOH’s deadline is January 1, 2014, and clinics would have until September of that year to comply. “In the meantime, we’ll be hoping to convince the Department of Health not to impose ridiculous requirements, but I think their hands have been largely tied by the legislature,” Crepps said. At the very least, the extended timeline leaves women’s advocates ample room to find a strategy. But the stakes are high: The clinics in jeopardy provide countless crucial women's health services in addition to abortion, like prenatal care, and mammograms.

2. Force women to buy illegal pills

Only six Texas clinics are currently licensed as ASCs, and they’re all in major metropolitan areas. As The New York Times reported, this will force women in rural communities to search for abortifacient pills (the most common is called misoprostol) at flea markets, and attempt abortions at home. The unregulated, contraband market is frightening, especially when you consider that even the correct pills can “cause serious bleeding or a partial abortion” if used improperly. Meanwhile, the drug is on sale for as little as $35 in pharmacies just over the Mexican border, and many believe women will flock across. “When asked how women should use the pills, some of the pharmacists said they did not know and others recommended wildly different regimes that doctors say could be unsafe,” the Times reports.

3. Screw West Texas

The law demands that all doctors who perform abortions have admitting privileges at hospitals within a 30-mile range; like ASC regulations, this is a popular TRAP measure (Targeted Regulation of Abortion Providers) that leverages minutiae to shut down clinics. As we’ve seen in other states, such as Mississippi, hospitals in conservative and religious areas often refuse privileges to doctors who provide the heavily stigmatized service. Terri Burke, the executive director of the Texas ACLU, said this provision promises to do a lot of damage in the poorer, more rural half of the state that lies west of highway I-35. “There, your clinics are few and far between, and you have many physicians who fly in for two days a week,” she said. “They’re not going to get admitting privileges” because the bulk of their practice isn’t local, and the 35 percent of Texans who live on that side of the tracks will be left without care. And all of this comes against a backdrop of already restricted access in Texas: In the past two years, Republicans have slashed funding to Planned Parenthood and other family-planning centers and rejected $30 million in Medicaid funding for gynecology and contraception, shuttering dozens of clinics. Even before the omnibus bill passed last week, the state’s health commission was projecting a rise of 24,000 unplanned births in 2014-15, as Amanda Marcotte notes over at The Daily Beast.

4. Ban abortions after 20 weeks

The law prohibits abortions at or after 20 weeks from fertilization, citing a discredited scientific assertion that fetuses start feeling pain at that point. (This may sound famliar if you've been paying attention to a similar bill currently meandering through the U.S. Congress.) As pediatric doctor Darshak Sanghavi pointed out at Slate, only about one percent of all abortions take place after 20 weeks—but those are usually the product of the worst of circumstances. “Comprehensive fetal testing, such as anatomical sonograms and ultrasounds of the heart, are typically performed just before 20 weeks of gestation,” he writes. “Such scans are critical for uncovering major birth defects, such as anencephaly (severe brain malformations), major heart defects, missing organs and limbs, and other severe birth defects. … Those are the ones who could be henceforth banned by the proposed Texas law, which would require many women who want abortions instead to carry fetuses with severe defects to term.” The law contains an exception for fetal defects that are “incompatible with life outside the womb,” but Sanghavi points out that that’s a high bar, and wouldn’t necessarily apply to a fetus with a slim chance of survival, or facing a persistent vegetative state.

5. Eliminate most non-surgical abortions

In the first nine weeks of pregnancy, many clinics let women choose between medical abortions (using misoprostol or a similar drug) and surgery. Aimee Arrambide of NARAL Pro-Choice Texas says the law forces doctors to stick to an over decade-old set of guidelines from the FDA, disregarding more up-to-date research that suggests a smaller dose is just as effective, and that this imposition may discourage doctors from offering an option many women find less invasive. The law also mandates uncustomary follow-up visits long after the procedure, which could be burdensome or prohibitive for patients travelling long distances.

Here are the three ways women's advocates are considering fighting back:

1. Take it to the courts

The law's composite parts are all drawn from other states that have done a bang-up job restricting abortion—and luckily, that means almost identical legislation is already subject to legal challenges, and in some cases setting helpful precedents. The ACLU, Planned Parenthood, and the Center for Reproductive Rights all say they are chewing over the possibility of a suit in Texas. The hope they can knock down the 20-week ban, since it’s a blatant violation of Roe v. Wade, and similar laws have been declared unconstitutional in Idaho and Arizona. As for the law's TRAP elements, judges have issued what Crepps calls “strongly worded” preliminary injunctions against admitting privileges laws in Alabama, Wisconsin, and Mississippi, and an ASC law in Kansas.

“What the courts are finding is that the laws are unnecessary to protect women’s health, and they are creating…substantial obstacles, and in a lot of places, complete obstacles,” Crepps said. The seminal 1992 Supreme Court case Planned Parenthood v. Casey states that laws cannot impose “undue burdens” on women seeking abortions, and Crepps says that means these kinds of targeted obstacles shouldn't be allowed to stand. But the interpretation of that standard rests with the judge, and it’s hard to say what Texas’s deep-red state and federal courts would consider an “undue burden.” What’s more, the law’s defender would be none other than Greg Abbott, the attorney general who championed the deep cuts to Planned Parenthood and the despised transvaginal ultrasound requirement.

2. Get out the vote

According to the ACLU’s Burke, “litigation is an option, but the real key is the legislature.” Groups with activist arms and volunteer manpower, the ACLU and NARAL among them, are discussing voter registration drives heading into the 2014 elections in the hopes of stacking the legislature with women-friendly candidates who might be willing to roll HB2 back. Much has been made of the effort to “turn Texas blue,” but Burke says she’s not even worried about going that far. “There are plenty of mainstream, solid, you might say center-right Republicans who don’t want this stuff,” she said. “I think a lot of those folks haven’t voted because they were so turned off. It’s not about turning Texas blue or red, it’s just about getting the good center bunch into seats of power.” The next legislative session doesn’t begin until January 2015, and Burke acknowledges that this strategy amounts to playing the long game.

3. Raise heaps of money

The law doesn’t wipe out every clinic in Texas, but if it stands, the costs associated with having an abortion will be sky-high for women who live hours from Houston, Austin, Dallas, or San Antonio. There are already organizations in Texas whose sole mission is to raise funds for women who can’t afford abortions, but they’re far overtaxed as it is. The Lilith Fund, for example, says it helped 1,214 women make up the gap between what they had and what they needed to pay last year—and that was only a third of the ones who called. In addition to raising money for individuals, Texans may try to raise money for new clinics that meet the state’s stringent regulations. Planned Parenthood may attempt to raise $1.5 million to build a new ASC-style facility along the state’s soon-to-be clinic-less southwest border, the head of its Hidalgo County chapter told The New York Times.

When Perry signed HB2, he ushered in a new era of restrictions for women's health in Texas. Barring a miracle in court, dozens of clinics will close. But the story won't end there. As Crepps said, “If there’s anything we can do, we will not sit by and let all these clinics shut their doors, and leave women with nothing.”

This post has been updated: Since publication, Perry has signed HB2.

Nora Caplan-Bricker is an assistant editor at The New Republic. Follow her on Twitter @ncaplanbricker.